When New Zealand came under British sovereignty in 1840, it acquired, as a colony of settlement, the law of England – that is, the common law, together with those statutes applicable to the circumstances of the colony at the time. This law applied in theory and, later, in practice to Maori as well as to Pakeha. The natives outside the settlements could have been left to be governed largely by their own customs, as happened in some other colonies, and in the early forties the Colonial Office inclined to this view. Tentative and short-lived steps were indeed taken in 1844 and 1846 towards adapting criminal procedure to Maori conditions. Further than this the authorities were unwilling to go and, except in the case of land, Maoris and Europeans have always been subject to the same law.
A comprehensive system of Courts was quickly established. Despite shortcomings in earlier years due to primitive conditions, the need to use inexperienced laymen in lower Courts, and the small numbers from whom to choose, the Courts have throughout our history performed with impartiality and, on the whole, with efficiency the function of administering justice according to law.
The Supreme Court has existed since its first constitution in 1841. On the other hand many lower Courts with many names were experimented with at first. There gradually emerged three tiers of Courts with original, as distinct from purely appellate, jurisdiction – Supreme Court, District Courts, and Magistrates' Courts. The germ of these last was the Resident Magistrates' Courts, established by ordinance of the Legislative Council in 1846, and the general criminal jurisdiction of Justices of the Peace. District Courts fell into disuse and were abolished in 1925. The highest Court in New Zealand is the Court of Appeal, set up in 1862 and reconstituted in 1957. The procedure of the Courts has likewise undergone much change over the years, in many instances prompted by reforms in England; but there has been no reluctance to anticipate or innovate where this has been thought advisable.
Government and people have always taken for granted the independence and incorruptibility of the Courts. These have certainly enjoyed a merited respect that has occasionally become a too-uncritical reverence. The first Chief Justice was closely associated with early legislation, and as late as the sixties we find published reports by Judges on legislative and other matters. More recently, the judiciary has held itself strictly aloof from public affairs.
The generally accepted concept of the functions of the Courts in New Zealand is a narrow one. Judges usually follow English decisions scrupulously, and lip-service at least is widely paid to the fiction that Courts simply apply existing rules to cases coming before them. These things have helped to protect the judiciary from controversy. On the other hand they have meant that the role of our Courts in developing the law has been slighter than in England or Australia and stands at the opposite extreme to the position in the United States.
A characteristic of New Zealand law from the beginning has been the free use of legislation to remedy evils and improve conditions. The immediate task was to adapt English law more closely to the colony's needs, and this produced a spate of Legislative Council ordinances. The first reaction of James Stephen, Under-Secretary at the Colonial Office, was that there had been “a morbid propensity to interfere with everything”, though he later admitted that wisdom had been shown in placing the law of the new colony on a right and durable basis. While the extent and novelty of this legislation has sometimes been exaggerated, what had to be done was done soundly. This is notably true of the major reforms effected by the Deeds Registration and Property Law Ordinances of 1842.
The first years of Parliamentary government saw few enactments of importance, but between about 1870 and 1910 there was a mass of legislation remarkable both for its volume and for its novel and often radical character. Many of the important differences between New Zealand and English law can be traced back to these decades. Thus the land transfer system was introduced (1870), primogeniture abolished (1874 and 1879), the procedure of the Supreme Court revised (1882), much of the present bankruptcy law established (1883), adoption (1881), legitimation (1894), and family protection (1900) introduced, married women given the right to own property (1883), the criminal law codified (1893), the principle of the Crown's liability for its servants' acts recognised (1877 and 1910), provision made for industrial arbitration (1894) and workers' compensation (1900), unsuccessful anti-monopoly legislation enacted (1910), and far-reaching reforms made in the field of criminal justice (1910). This was during a period when such questions as land tenures, electoral reforms, and the liquor problem were themselves responsible for much legislation.
Subsequently the flow of reform dwindled. A certain amount was done – the legislation providing for divorce on the ground of three years' separation, compulsory registration of land title, compulsory third-party insurance, and the relief of mortgagors and lessees was a product of the 1911–35 period. Nevertheless, insufficient attention was given to revising the law and keeping it up to date. Many English reforms were ignored and on several occasions the Law Society was critical of the failure to remedy various defects.
A new era began in 1936 following the appointment of H. G. R. Mason as Attorney-General in the first Labour Government and the creation of an organisation in the Justice Department to initiate and study proposals for reform. For the first time, law reform was pursued systematically and on a full-time basis. Another innovation was the establishment in 1937 of the Law Revision Committee to bring outside interests regularly into the work of reforming the law. This did much to improve the quality of legislation of a more legal character. The volume and range of legislation since 1936 has been great, but the most fundamental development was probably the adoption of the Statute of Westminster in 1947. Hitherto legislation inconsistent with an Act of the British Parliament extending to New Zealand was invalid, and British legislation could theoretically over-ride any New Zealand Act. Since 1947 the New Zealand Parliament has been fully sovereign, and there are no legal restrictions on the laws it can make.
Much legislation is avowedly social or economic and reflects the policy of the party in power. Relationships between the law and the social system are equally close, however, at what may be called the subpolitical level. Social and legal reform in New Zealand over the past 90 years has been an unbroken process, now speeding up, now faltering, but illustrating an underlying continuity in our history, and its rhythm has not followed closely the political complexion of Governments.
One persistent theme is a preoccupation with the welfare of the family, particularly wives and children. In this sphere New Zealand has never been content simply to follow others. This is testified by legislation relating to adoption, family protection, joint family homes, the capitalisation of family benefits, and many other matters. Even the extensions of the grounds of divorce have had as a principal object the helping of families by giving legal status to stable de facto unions. Much of the licensing legislation affords another instance, since a dominant motive was to save the family from the abuses of liquor.
A related tradition is the intervention of the State to assist the small man whose ambitions are independence, security, and a modest living. While the law has shown a deep distrust of that figure, supposedly typical of our society, the man alone, it has tried to give reality to the image of New Zealand as the paradise of the common family man. Likewise, numerous statutes license and regulate those on whose honesty or skill others must rely. Although this is not unique to New Zealand, it is characteristic.
New Zealand law is a remarkable mixture of radicalism and conservatism. The key to this is the pragmatic temper of lawmakers and the community generally. As a rule, actual injustices are remedied and real needs supplied without fear that traditional doctrines or institutions will be damaged in the process. Where the spur of human needs is absent, change is strongly resisted. Thus State life insurance and State trusteeship were introduced in 1869 and 1872 respectively, during the heyday of laissez faire. The Victorian attitude towards marriage did not prevent legislation in 1877 enabling the children of de facto marriages to share in their father's estate. On the other hand, the anomalous distinctions between libel and slander remained until 1954, the grand jury lingered until 1962, and mothers still have no share in the guardianship of their children while the parents are living together. Similarly, long-standing and ample protection for women as wives and mothers is coupled with conservatism towards women in public affairs, for example, as jurors.
One frequently stated aim has been to keep New Zealand law
in line with English law. This has undoubtedly – and
understandably – had a strong influence. It is misleading,
however, to look merely at what legislators have said,
perhaps as conventional rhetoric, and to ignore what they
have done. Even when the “mother-complex” was strongest
during the twenties and thirties, some legislation was
imported from other places or had a purely local content.
Where the social element is pronounced, there has been less
hesitation in going our own way. In more strictly legal
fields, however, the tradition of following English law,
together with a certain natural apathy to innovate, has
prevented or delayed many useful changes. Admitting the
advantages of Commonwealth uniformity in this matter, it can
nevertheless be suggested that we have been over-ready to
copy or retain the details of English law. Recently there
have been signs of a more balanced approach, and New Zealand
law may be moving towards a fulfilment of Allen Curnow's
prophecy:
“… some child, born in a marvellous year,
Will learn the trick of standing upright here”.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.